After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

Background

Plaintiff Junann Johnson appeals from the district court's dismissal of her
Title VII suit against Choctaw Management/Services Enterprise (CM/SE) for lack
of subject matter jurisdiction. We take jurisdiction pursuant to 28 U.S.C. § 1291
and we affirm.

CM/SE is a business enterprise wholly owned by the Choctaw Nation of
Oklahoma, a federally recognized Indian tribe.(1) During the time period at issue,
CM/SE had a federal government contract to operate a family advocacy program
for members of the United States Army stationed in Germany. Johnson, who is
African American, worked for CM/SE in Germany as a social worker before being
terminated in August of 2003. She claims that she was terminated because of her
race and sex and in retaliation for complaining of discrimination, all in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to
§ 2000e-17.

On April 26, 2004, the EEOC rejected Johnson's claim on the ground that
CM/SE is an "Indian Tribe owned enterprise exempt under Title VII." Aplee.
Supl. App. at 4. Johnson then filed this action in U.S. District Court asserting a
single cause of action against CM/SE under Title VII. CM/SE moved to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) claiming that as a
wholly owned business enterprise of the Choctaw Nation, it is exempt from suit
under Title VII. The district court agreed and dismissed the complaint for lack of
subject matter jurisdiction.

Title VII prohibits employers from engaging in discriminatory practices.
However, its prohibition only applies to "employers" as that term is defined in the
statute.

The term 'employer' means a person engaged in an industry
affecting commerce who has fifteen or more employees for each
working day in each of twenty or more calendar weeks in the current
or preceding calendar year, and any agent of such a person, but such
term does not include (1) the United States, a corporation wholly
owned by the Government of the United States, an Indian tribe, or
any department or agency of the District of Columbia subject by
statute to procedures of the competitive service . . . .

42 U.S.C. § 2000e(b) (emphasis added). We have held that this language
"completely exempts the activities of Indian tribes from the requirements of
Title VII." Dille v. Council of Energy Res. Tribes, 801 F.2d 373, 376 (10th
Cir.
1986); see also Duke,199 F.3d at 1126 (reiterating that Congress
expressly
exempted Indian tribes from Title VII). Johnson concedes this general point but
argues that CM/SE waived tribal immunity by subcontracting to provide services
for the federal government and by organizing itself as a for-profit corporation.

Johnson's argument conflates the doctrine of tribal immunity and
Title VII's express exemption of Indian tribes from its coverage. Therefore, she
fails to address the basis underlying CM/SE's dismissal. Johnson's sole claim
against CM/SE is under Title VII. CM/SE based its motion to dismiss on Title
VII's express exemption of Indian tribes from its coverage, not on tribal
immunity. The district court granted the motion based on Title VII's exemption:
"Congress created an exemption to Title VII for Indian tribes and that law has not
been abolished." Aplee. Supl. App. at 34. Dismissing the complaint with
prejudice, the district court implicitly found that CM/SE qualified as an Indian
tribe and was therefore not an "employer" for the purposes of Title VII.

The Fifth Circuit reached the same conclusion in a similar Title VII case
against CM/SE. Thomas v. Choctaw Mgmt./Servs. Enter., 313 F.3d 910, 911 (5th
Cir. 2002) (per curiam). In that case, the plaintiffs alleged that CM/SE was a
separate legal corporate entity owned by the Choctaw Nation and therefore not
within Title VII's exemption. Id. However, in its motion to dismiss, which
was
granted by the district court, CM/SE provided irrefutable evidence that it was not
a corporation at all but a sole proprietorship of the Choctaw Nation. Id. Based
on CM/SE's showing, the circuit court reached the following conclusion:

[T]here is no question of fact (and no doubt) that CM/SE is not a
corporation at all and is, in fact, a direct proprietary enterprise of the
Choctaw Nation, from which it is legally inseparable. As such, the
[plaintiffs'] Title VII claims are wholly without merit and thus
legally frivolous.

Id.

In this case, Johnson offers nothing to refute CM/SE's claim that it is a
business enterprise owned 100% by, and legally inseparable from, the Choctaw
Nation; she does not even allege otherwise in her complaint. In short, she fails to
explain why, despite the clear language of 42 U.S.C. § 2000e(b), CM/SE is not an
Indian tribe and therefore exempt from Title VII's coverage. Instead, Johnson
continues to argue that CM/SE should be stripped of tribal immunity even though
the district court's order was not based on tribal immunity and CM/SE has not
invoked tribal immunity.(2) We need not
address this argument. Regardless of
CM/SE's immunity status, it is clear that CM/SE is an "Indian tribe" for purposes
of Title VII and therefore exempt from its coverage. Even if we were to hold that
CM/SE had somehow waived or was not entitled to tribal immunity, that alone
would not create subject matter jurisdiction in the federal court with respect to
Johnson's Title VII claim. See Duke, 199 F.3d at 1126 (holding that parties
cannot create subject matter jurisdiction).

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. Although Johnson refers to CM/SE
as a corporation separate and apart from
the Choctaw Nation in her opening brief, she states in her reply that this label was
a "mistake or misnomer," Aplt. Reply Br. at 1. In her complaint, she alleges that
CM/SE "is believed to be owned by the Choctaw Indian Nation, an Indian Tribe."
Aplee. Supl. App. at 1.

2. As CM/SE correctly notes, however,
it is not within the province of the
courts to abrogate tribal immunity. Such decisions must be left to Congress. SeeKiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 758 (1998).